Kerala High Court
Chacko Chummar vs Taluk Land Board on 19 October, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936
RP.No. 833 of 2012 IN CRP.2417/1999
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CRP 2417/1999 of HIGH COURT OF KERALA DATED 19-10-2007
REVIEW PETITIONER(S)/REVIEW PETITIONER/REVISION PETITIONER:
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CHACKO CHUMMAR, AGED 77 YEARS,
S/O.CHACKO, RESIDING AT PYNADATH HOUSE, AKAPARAMBU,
NEDUMBASSERY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT,
PINCODE-683 575.
BY ADV. SRI.PEEYUS A.KOTTAM
ADV. S.V. BALAKRISHNA IYER (SR.)
RESPONDENT(S)/RESPONDENTS:
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1. TALUK LAND BOARD,
ALUVA, REPRESENTED BY ITS CHAIRMAN, COLLECTORATE,
CIVIL STATION, KAKKANAD, COCHIN-682 030.
2. THE TAHAZILDAR,
TALUK OFFICE, ALUVA, PINCODE-683 101
ERNAKULAM DISTRICT.
3. THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT ANNEX, TRIVANDRUM-695 001.
BY ADV. GOVERNMENT PLEADER SHRI. REJI JOSEPH.
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
21-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P. BHAVADASAN, J.
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R.P. No. 833 of 2012 in
C.R.P. No. 2417 of 1999
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Dated this the 21st day of November, 2014.
ORDER
In this review petition, the petitioner seeks review of order dated 19.10.2007 in C.R.P.2417 of 1999 on the ground that there are errors apparent on the face of the record in the order of this Court.
2. Attention is drawn to the statement in paragraph 1 of the order "the contention of the petitioner was that an excess of six acres of land which was actually in his possession and the remaining extent of land directed to be surrendered are lands outstanding in possession of tenants..." is not the correct statement as represented by the learned counsel for the petitioner. What was represented was that though the petitioner was entitled to more than 12 acres but was in actual possession of only 6 and odd acres and not that he was holding excess land of 6 acres.
R.P.833/2012.
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3. Before going into the merits of the review petition, a few facts may be noted. Ceiling proceedings were initiated against the petitioner and draft statement was served. In the draft statement it is seen stated that he had to account for 77.06.023 acres. The area retainable by the declarant was 12.48.188 acres. Exemption already allowed as per Part C of the draft statement was determined as 40.71.874. Further exemption allowed as per the order impugned is 2.02.000 acres. The total area thus exempted is 42.73.674 acres and the extent of land to be surrendered by the petitioner was determined as 21.83.961 acres. It is this order dated 17.11.1998 was challenged before this Court in C.R.P. 2417 of 1999.
4. The contention raised by the learned counsel for the review petitioner is that at no point of time the petitioner was in possession of 77 and odd acres as shown in the draft R.P.833/2012.
3statement. He always possessed only 6 and odd acres of land and that is what he had represented before this Court. This Court by a mistake understood that the petitioner had mentioned that he had 6 acres of land in excess with him. That is an error apparent on the face of the record.
5. First of all that contention cannot be accepted for the reason that at no point of time including the earlier proceedings before this Court the petitioner had a case that he had never held 77.06.023 acres for which he was liable to account. Even in the present proceedings from out of which this review petition arises, he has no such case. He only sought exemption of certain areas. That was considered on an earlier occasion. On challenge before this court, the matter was remanded to the Taluk Land Board to consider the veracity of the claim that the parcels of land belong to declarant was in the possession of others and if it is so, those extent of properties be deleted from his account. It was after R.P.833/2012.
4considering his claims that the order dated 17.11.1998 was passed.
6. In the revision petition filed before this Court from which this review arises, there is no contention taken by the petitioner that he had never been in possession of 77 and odd acres as per the draft statement of the Taluk Land Board. He, on the other hand, confined his claim to two parcels of land covered by two purchase certificates that is 1.38 acres in Sy. No. 1022/6 and 85 cents in Sy. No. 176/7 which according to him was liable to be exempted from his possession. This Court accepted that contention and directed those extents to be deleted.
7. While disposing of the CRP by order dated 19.10.2007, this Court observed as follows:
"However, since the definite case of the petitioner is that there were the land outstanding in possession of the third parties and to whom notice was served, actually, it was their responsibility to produce documents R.P.833/2012.5
in support of their title. Therefore, in the absence of any fraud or collusion or a case that the petitioner has fraudulently transferred any land in favour of third parties, the petitioner's contention though rejected for want of evidence, it cannot be said that other lands in possession of the petitioner shall be first taken. According to the petitioner, he has in possession of only an extent of six acres of land. Therefore, for the time being, the Land Board shall proceed to recover the same lands in respect of which claims of tenancies were rejected for want of evidence in spite of notice to those persons and thereafter only to proceed to take the land in the hands of the petitioner be taken."
While seeking review of the present order, the petitioner has furnished a table wherein he has in detail shown the exemption granted in the CRP and that the land to be surrendered is only 19.49.961 acres. True he is entitled to hold 12.48.188 acres of land. In the table now given by the petitioner it is shown that he is in possession of only 6.02.510. That means the balance extent is held by others. He then points out that 80.50 cents in Sy. No. 367/6, 367/8, R.P.833/2012.
6367/10 and 367/11 and 369/6 are sold by the declarant as per document No. 467/1965. It is further stated that an extent of 26 cents in Sy. No. 606/12 was sold by the declarant as per document No.153/1965. It is contended that these sales being prior to 1.1.1970 are liable to be excluded from the account of the declarant.
8. This aspect was neither argued before this Court nor is mentioned in the memorandum of revision petition. It is urged for the first time in the review petition. Therefore, it cannot be said that it is an error apparent on the face of the record. This claim is only to be rejected.
9. It is further pointed out that after 1.1.1970 the declarant had sold 1.48 acres as per document Nos. 974/1944 (84.576 cents), 1072/1975, 2533/1976 and 230/1977 and the total extent would come to 1.50 acres (Total 1.06 + 1.48 = 2.54). As regards the sale after 1.1.1970 benefit is sought for under Section 7E of the Act. R.P.833/2012.
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10. This is a matter which was not agitated before this Court while this Court was called upon to consider the C.R.P and therefore that too does not arise for consideration in review.
11. Since the petitioner had pointed out that certain extents of land were not in his possession and were in the possession of strangers, while disposing of the C.R.P. this Court had observed that lands of those persons who had not responded to the notice and who are holding the lands which are accounted in the name of the petitioner shall be taken possession of and if thereafter any further extent of land is to be surrendered, then alone property with the petitioner shall be proceeded against. The order is clear and definite. As already noticed, the ground now urged do not find a place in the memorandum of revision nor were they urged at the time of hearing of the C.R.P. R.P.833/2012.
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12. Learned counsel for the petitioner then brought to the notice of this Court the decision reported in K.A. Joseph v. TalukLand Board, Cochin (1976 K.L.T. 424) and pointed out that the choice of land given by the landlord for surrender was rejected on frivolous grounds and other than the grounds falling under Section 85(6) of the Land Reforms Act. True, it is so. But in the order in C.R.P. it was observed that on perusal of the statement it is seen that the lands are in possession of various persons, learned counsel pointed out that that does not carry any meaning and it is to be considered.
13. This is a matter which ought to have been agitated at the time of hearing of the revision petition and not in the review petition and it is not seen raised for consideration before this Court while considering the C.R.P.
14. This Court has only stated that the lands which the petitioner stated as outstanding in the possession of others to whom notice has been issued and who had not R.P.833/2012.
9responded will be recovered first and thereafter proceed to recover the land in the possession of the petitioner. It means that the petitioner had given an option regarding the lands which he proposed to surrender.
This Review Petition is dismissed with the above observation.
P. BHAVADASAN, JUDGE sb.